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Home My WebLink About20111411.tiff RECORD OF PROCEEDINGS MINUTES BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO JUNE 1, 2011 The Board of County Commissioners of Weld County, Colorado, met in regular session in full conformity with the laws of the State of Colorado at the regular place of meeting in the Weld County Centennial Center, Greeley, Colorado, June 1, 2011, at the hour of 9:00 a.m. ROLL CALL: The meeting was called to order by the Chair and on roll call the following members were present, constituting a quorum of the members thereof: Commissioner Barbara Kirkmeyer, Chair— EXCUSED Commissioner Sean P. Conway, Pro-Tem Commissioner William F. Garcia Commissioner David E. Long Commissioner Douglas Rademacher— EXCUSED Also present: County Attorney, Bruce T. Barker Acting Clerk to the Board, Elizabeth Strong Director of Finance and Administration, Monica Mika MINUTES: Commissioner Long moved to approve the minutes of the Board of County Commissioners meeting of May 25, 2011, as printed. Commissioner Garcia seconded the motion, and it carried unanimously. CERTIFICATION OF HEARINGS: Commissioner Garcia moved to approve the Certification of Hearings conducted on May 25, 2011, as follows: 1) USR Permit #1777 - Dewain Shapely Trust, Go Verizon Wireless, LLC; 2) Amended USR Permit #1075 - R.M. Hiner Construction Company, Inc.; and 3) USR Permit #1780 - Petroleum Development Corporation. Commissioner Long seconded the motion, which carried unanimously. AMENDMENTS TO AGENDA: There were no amendments to the agenda. PUBLIC INPUT: Doug Meyer, Weld County resident, indicated Mick Mizner, Weld County resident, requested a letter from the Board regarding whether the Forest Service is meeting its agreement obligations, and a letter was provided to him, dated August 14, 2008, regarding prescribed burns; however this is not the information Mr. Mizner wanted. He stated the Forest Service ignored the letter in the year 2008, since the burns did not cease until the year 2010. He stated Mr. Mizner is interested in whether there is a Memorandum of Understanding or a Memorandum of Agreement with the Forest Service, which outlines the Forest Service's obligations. Mr. Meyer stated Save the Poudre indicated on KFKA radio last week that it is unhappy the Northern Integrated Supply Project (NISP) was included in the Economic Stability Plan, and it claimed it will conduct an online petition to remove it, since the County failed to conduct public hearings on the matter. He indicated he does not concur with the opinion. Commissioner Conway stated Save the Minutes, June 1, 2011 2011-1411 Page 1 BC0016 Poudre is misinformed or not paying attention to the facts, since there were seven (7) public regional hearings conducted throughout the months of January, February, and March, to receive input about the Economic Development Assessment. He stated notification was published for all seven (7) meetings, and all, or most, of the Commissioners were present at the meetings. He stated Larimer County conducted two (2) public hearings, and Save the Poudre was sent invitations to the hearings; however, none of its representatives attended. Mr. Meyer read a portion of an article into the record, marked Exhibit A and titled the Floating Dollar as a Threat to Property Rights. CONSENT AGENDA: Commissioner Long moved to approve the Consent Agenda as printed. Commissioner Garcia seconded the motion, and it carried unanimously. COMMISSIONER COORDINATOR REPORTS: Chair Pro-Tem Conway stated he and Chair Kirkmeyer participated in the Accelerate Colorado Economic Development conference in Washington D.C., and they met with the Colorado delegation. He stated Senator Mark Udall indicated he cannot endorse a specific water project; however, there are a number of water storage projects he deems worthy of moving forward. Chair Pro-Tem Conway stated there is a piece of legislation which is an Amortization Bill for community banks and other financial institutions which incurred a lot of losses with the economic downturn, particularly with real estate. He stated the Amortization Bill has been sponsored by Congressmen Scott Tipton, Ed Perlmutter, and Cory Gardner, and it will allow the institutions to amortize their losses over a 10-year period, as opposed to one (1) year. He stated he spoke to Congressman Gardner yesterday and he indicated he spoke to the House Financial Services Chair and he is working diligently on the Amortization Bill with Congressmen Tipton and Perlmutter. Commissioner Conway stated this is a piece of legislation worth watching, and the Board may write a Resolution in support of it, since it would be a good economic stimulus for the community. NEW BUSINESS: CONSIDER INTERGOVERNMENTAL AGREEMENT CONCERNING ADMINISTRATION OF NEIGHBORHOOD STABILIZATION PROGRAM 3 AND AUTHORIZE CHAIR TO SIGN - CITY OF FORT LUPTON: Bruce Barker, County Attorney, stated this agreement needs to be approved by the Board as the Board of County Commissioners, in addition to the Housing Authority Board. Commissioner Garcia moved to approve said agreement and authorize Chair to sign. Seconded by Commissioner Long, the motion carried unanimously. CONSIDER CHILD PROTECTION AGREEMENT FOR SERVICES AND AUTHORIZE CHAIR TO SIGN - DYNAMIC FAMILY DESIGN, LLC: Judy Griego, Director, Department of Human Services, stated this agreement was reviewed as a "pass around" document, along with a memorandum dated May 2, 2011, and it is an ongoing agreement to provide child welfare investigations at Platte Valley Youth Services and ABC Daycare. She stated the term of the agreement is April 25, 2011, through December 31, 2011, and it is for a maximum amount of $50,000.00. Commissioner Garcia moved to approve said agreement and authorize Chair to sign. Seconded by Commissioner Long, the motion carried unanimously. CONSIDER APPLICATION FOR TRANSFER OF OWNERSHIP OF A TAVERN LIQUOR LICENSE FROM J. MONTES, INC., DBA EL RODEO NIGHT CLUB, TO RM, INC., DBA ROOM 119, AND AUTHORIZE CHAIR TO SIGN: Deputy Lisa Carpenter, Sheriff's Office, stated she inspected the establishment and she finds no grounds for disapproval of the application. Minutes, June 1, 2011 2011-1411 Page 2 BC0016 Dan Carr, legal representative for the applicant, Rodolfo Montes, indicated Mr. Montes is also present today. He stated Mr. Montes has worked within the facility and helped to operate it for 17 years; however, he and his wife have divorced. He stated Mr. Montes was awarded this business in the divorce, and his wife was awarded another property. He stated the transfer of ownership will remove Ms. Montes' name from the license and she will have no further responsibility to the facility. Mr. Carr stated Ms. Montes does not want Mr. Montes to utilize the previous corporation; therefore, a new entity was formed. He stated the days and hours of operation will remain the same. Mr. Barker indicated he has reviewed the application materials and everything is in order. Commissioner Long moved to approve said application and authorize the Chair to sign. Seconded by Commissioner Garcia, the motion carried unanimously. CONSIDER APPLICATION FOR LICENSE TO CONDUCT PUBLIC DANCE OR DANCES AND AUTHORIZE CHAIR TO SIGN - RM, INC., DBA ROOM 119: Mr. Carr stated this item is related to the previous application. Mr. Barker stated the license will be effective through December 31, 2011, since this type of license is issued on a yearly basis. Commissioner Long moved to approve said application and authorize the Chair to sign. Seconded by Commissioner Garcia, the motion carried unanimously. CONSIDER APPLICATION FOR A TEMPORARY ASSEMBLY OF MORE THAN 350 PERSONS ON JUNE 11 AND 12, 2011 - RUBEN GUARDIOLA: Ruben Guardiola, Sr., applicant, and Ruben Guardiola, Jr., indicated they were present. Deputy Carpenter stated she inspected the property, and the applicant has security in order and an ambulance service on standby for the days of the event. She stated she and Mitch Wagy, Paramedic Service; Janet Carter, Department of Public Works, and Barry Shaffer, Chief, Kersey Fire Department, met to discuss the event, and the staging for the ambulance is in place. She stated she has no grounds for disapproval of the application. Ms. Carter stated she has reviewed the traffic control plan and it appears to be adequate for the proposed event. Martin Gutierrez, friend of Mr. Guardiola, indicated he applied for a temporary assembly permit recently and he has been helping his friends, including Mr. Guardiola, with obtaining temporary assembly permits. He indicated he hopes the Board will take this into consideration when reconsidering issuing him a Use by Special Review (USR) Permit or additional Temporary Assembly Permits in the future, as well as the fact that his temporary assembly event was successful. Mr. Barker stated everything is in order with Mr. Guardiola's application; however, a Temporary Assembly Permit is for a single occurrence, and if the applicant desires to conduct events on a continual basis, a USR Permit will be required. Commissioner Conway stated there have been previous discussions with Mr. Gutierrez about obtaining a USR Permit, and Mr. Gutierrez previously indicated he wanted the opportunity to prove he could successfully conduct events before reapplying for a USR Permit. In response to Mr. Gutierrez, Mr. Barker clarified a temporary assembly permit is for a single event, and a USR Permit is necessary for more events to occur on a property, pursuant to the Weld County Code. Chair Pro-Tem Conway provided the opportunity for public testimony; however, none was given. Commissioner Garcia stated the licenses for the food provider have been provided in Mr. Guardiola's application, as well as information about the security company, which will provide four (4) Spanish-speaking officers, and a total of 10 officers at the event. He stated everything appears to be in place, and he moved to approve said application. Seconded by Commissioner Long, the motion carried unanimously. CONSIDER CHANGE ORDER #1 TO AGREEMENT FOR 2011 BRIDGE REHABILITATIONS AND AUTHORIZE CHAIR TO SIGN (BID #61100025) - JAG'S ENTERPRISES, INC.: Mike Bedell, Department of Public Works, stated this item is related to an annual budget for bridge rehabilitations projects, and bid proposals are provided from private contractors. He stated over the past several years the bridge rehabilitations have consisted of placing reinforced concrete against the back walls of Minutes, June 1, 2011 2011-1411 Page 3 BC0016 the bridges, which strengthens the bridges, slows the rusting of the steel, and extends the lives of bridges. He stated this year's contract is going well and the low bid was quite a bit below the engineer's estimate; therefore, the County can complete additional work this year if it chooses, and he is requesting to add one (1) more structure to this year's projects, and it can be removed from next year's list. In response to Commissioner Garcia, Mr. Bedell stated the estimate for Bridge 90-45A was accurate, and he stated the structure has already been completed and paid for. He stated Bridge 90-45A was one (1) of the larger bridges, and it required rehabilitation, including encasing the steel pilings, and the company which completed the construction had reusable forms, which allowed it to complete the project for less than his estimate. Commissioner Garcia moved to approve said change order and authorize the Chair to sign. Seconded by Commissioner Long, the motion carried unanimously. CONSIDER NONEXCLUSIVE LICENSE AGREEMENT FOR UPGRADE AND MAINTENANCE OF CR 132 AND AUTHORIZE CHAIR TO SIGN - EOG RESOURCES, INC.: Don Carroll, Department of Public Works, stated this nonexclusive license agreement will allow EOG Resources, Inc., to access a property for the purpose of drilling, by utilizing the Section Line for County Road 132, which provides access to the West Pawnee Bread and Breakfast facility owned by Paul Tims. He indicated there is existing public access; however, there is a power line in place within the right-of-way; therefore, he encouraged EOG Resources, Inc., to contact Mr. Tims, in order to access an alternative route on Mr. Tims property, which it did. EOG Resources, Inc., acquired a 40-foot access on Mr. Tims property. He recommended approval of the agreement to allow access to County Road 132 and the drilling site. Commissioner Long moved to approve said agreement and authorize the Chair to sign. Seconded by Commissioner Garcia, the motion carried unanimously. CONSIDER TEMPORARY CLOSURE OF CR 3 BETWEEN CR 12 AND SH 52: Ms. Carter stated she is presenting this request on behalf of the Town of Erie, and the closure is proposed to commence June 6, 2011, through June 10, 2011, in order to install a 12-inch waterline within State Highway 52 right-of-way. She stated this segment of County Road 3 needs to be closed in order to complete the construction. Commissioner Long moved to approve said temporary closure. Seconded by Commissioner Garcia, the motion carried unanimously. CONSIDER APPLICATION FOR FEDERAL TRANSIT ADMINISTRATION (FTA) GRANT ASSISTANCE FOR SECTIONS 5310 AND 5311 AND AUTHORIZE CHAIR TO SIGN: Barb Connolly, Controller, stated this is a two (2) year grant application to the Colorado Department of Transportation (CDOT), and the only difference from previous years is capital grants are being requested, in addition to operating funds. She stated $165,000.00 for capital is being requested for the year 2012, including a $33,000.00 match from the County, and the same amount is being requested in the year 2013. She stated $304,150.00 is being requested for operating and administration costs for the year 2012, with a County match in the amount of $131,450.00. Ms. Connolly stated the County is requesting $327,690.00 for operating and administration costs for the year 2013, with a County match in the amount $143,220.00. In response to Chair Pro-Tem Conway, Ms. Connolly confirmed this item was discussed in a work session yesterday. Commissioner Long moved to approve said application and authorize the Chair to sign. Commissioner Garcia seconded the motion, which carried unanimously. CONSIDER APPLICATION FOR COMMUNITY ORIENTED POLICING SERVICES (COPS) CHILD SEXUAL PREDATOR PROGRAM GRANT FOR NORTHERN COLORADO REGIONAL FORENSIC LABORATORY AND AUTHORIZE ELECTRONIC SUBMITTAL: Ron Arndt, Director, Northern Colorado Regional Forensic Laboratory, stated the laboratory was nominated for this grant by the U.S. Attorney's Office, and it is a competitive grant to provide a variety of training opportunities for law enforcement agencies, investigators within Weld County, the Child Advocacy Center, and A Kid's Minutes, June 1, 2011 2011-1411 Page 4 BC0016 Place. He stated all of the training is to provide assistance to children who are victims of sexual predators. In response to Chair Pro-Tern Conway, Monica Mika, Director of Finance and Administration, confirmed there was a work session about this application, and Chair Kirkmeyer and Commissioner Rademacher had some outstanding questions about being able to divide the actual costs among different locations. She stated this is just an application; therefore, it is not critical to have all the answers at this point in time; however, the specific locations for the equipment will need to be located prior to the acceptance of the funds. She stated there are per diem costs associated with travel identified in the application which are not consistent with Weld County's allowances. She stated one of the questions at the work session was about Affiliated Computer Systems, Inc. (ACS), and this matter has been resolved; ACS will not be supporting this equipment. Ms. Mika stated there is a discrepancy; the application indicates the total project cost is $450,000.00; however, the Federal request is $456,000.00; therefore, there may be a typographical error in the application. She reiterated it is appropriate to approve the application; however, the outstanding issues will need to be resolved before accepting the funds. Mr. Arndt indicated the County can request up to $500,000.00; therefore, the request is below the allowed amount. In response to Chair Pro-Tem Conway, Mr. Arndt stated the difference between the two (2) amounts is due to the cost for a mandatory training he discovered will be required by grant recipients. He stated the training will be a conference in Dallas, in the year 2012, and the training cost was not included in the original figures. Further responding to Chair Pro-Tem Conway, Mr. Arndt confirmed the training will be paid for by the grant, and he clarified the majority of the grant will be for training, as opposed to equipment. He stated some of the questions from the work session were regarding the Coverdell grant which was discussed in the same work session. Commissioner Long indicated plane tickets should be able to be obtained for a lesser amount than the amount specified in the budget. Mr. Arndt indicated the amount for the plane tickets is an estimate, and he tried to estimate the highest possible expenses, in order to avoid having inadequate funding; however, first-class seats and luxurious suites will not be purchased. Ms. Mika indicated the County would not supplement the funds for this type of travel if Mr. Arndt underestimated the cost, since it is not part of the Department's budget; therefore, Mr. Arndt is following the appropriate course to ensure all the associated travel is paid for by the grant. Mr. Arndt stated the grant specifies the County rules and Federal regulations will be followed concerning anything the funds are provided for. Chair Pro-Tem Conway inquired as to whether any unutilized funding will be returned to the U.S. Department of Justice. Mr. Arndt indicated his experience has been that after grant money has been approved, if there are funds remaining, the U.S. Department of Justice has asked the Department to identify other programs where the funding can be utilized, and he has already identified additional training for A Kid's Place. Commissioner Long moved to approve said application and authorize its electronic submittal. Seconded by Commissioner Garcia, the motion carried unanimously. CONSIDER DUST BLOWING COMPLAINT - JIMMIE AND CHARLOTTE CROSS: Mr. Barker stated dust blowing complaints are occasionally received pursuant to Section 35-72-103, C.R.S, which allows the Board to conduct a hearing to determine whether the findings of fact specified in the proposed Resolution exist. He indicated notification of the hearing has been provided to the property owner and the complainant, and staff has communicated with the West Greeley Conservation District, which provided a letter that is included with the materials provided to the Board. He suggested the Board first hear from the West Greeley Conservation District, followed by the Department of Public Health and Environment and the property owner. He stated the complainant called and indicated he will be unable to attend the hearing. Joyce Wallace, District Manager, West Greeley Conservation District, introduced Tommy Meyer, Field Technician, West Greeley Conservation District. She stated in the year 2009, Lynn Brownlee, complainant, filed his initial complaint against the Crosses, after reading a newsletter article from the Minutes, June 1, 2011 2011-1411 Page 5 BC0016 West Greeley Conservation District which indicated it is the land owner's responsibility to keep dust from blowing, and a field technician inspected the property and determined there was soil blowing; however, there was not a major conservation situation. She stated Mr. Brownlee resides next door to an animal feeding operation where soil blows, and photographs have been submitted to the Board from the year 2009, and from May, 2011. Ms. Wallace stated Mr. Meyer will tell the Board about the inspection he completed in May, 2011; however, he did not work for the West Greeley Conservation District during the initial mitigation attempts in the years 2009 and 2010. She stated the recommendations provided to Jimmie and Charlotte Cross, property owners, were intended to be in the spirit of good neighborly actions, as opposed to being necessary for soil conservation. She stated there is a buffer of vegetation surrounding the Cross property and there is some bare ground on the property. Ms. Wallace stated there is an existing fence separating the Cross and Brownlee properties which is taller than any silt fence the West Greeley Conservation District would recommend being installed. She stated the West Greeley Conservation District has suggested Mr. Cross move the cattle; however, it is a calving lot. She stated it was also suggested that Mr. Cross spread manure on the property, which he has completed. Ms. Wallace stated Mr. Brownlee wanted some vegetation removed from the Cross property, which Mr. Cross completed, and it may be an aesthetic improvement; however, it created more of a dust blowing issue. In response to Chair Pro-Tem Conway, Ms. Wallace clarified in the year 2009 there were some concerns, and Mr. Cross completed everything which was required to mitigate the blowing dust, including planting wheat upon Mr. Brownlee's request. She stated Mr. Brownlee was angry the wheat was being dryland farmed and that irrigation water was not being diverted to it; however, Mr. Cross cannot utilize irrigation water for the wheat. She stated the West Greeley Conservation District cannot dictate what kind of agricultural operation Mr. Cross can operate. Ms. Wallace stated Mr. Cross has resided on this property his entire life, and Mr. Brownlee moved onto his property in the mid-1980s. She stated the dry pen has been a calving facility since before Mr. Brownlee moved there, and it is her opinion Mr. Brownlee's issue is purely aesthetic. Mr. Meyer stated he inspected the Cross property in May, 2011, and observed all the recommendations previously made by the West Greeley Conservation District had been followed. He stated Mr. Brownlee wanted a fence installed and wheat planted, and both items have been completed and he has photographs of both items. He stated the District also recommended straw bales be placed along the fence as an additional barrier, and Mr. Cross has also completed this request. He stated Mr. Cross has gone beyond his duty to follow all the recommendations made by the West Greeley Conservation District. In response to Commissioner Long, Ms. Wallace stated she believes this is simply a situation where Mr. Brownlee does not appreciate what living in an agricultural environment entails. In response to Commissioner Garcia, Ms. Wallace stated leaving the vegetation Mr. Brownlee requested that Mr. Cross remove, would have been just as effective as anything the West Greeley Conservation District could recommend. She stated any mitigation the West Greeley Conservation District can recommend will have a consequence; for example, if Mr. Cross spreads manure, flies will be a consequence, and if Mr. Cross places straw bales along the fence as a buffer, the consequence is blowing straw. She stated Mr. Brownlee wants the West Greeley Conservation District to indicate Mr. Cross needs to plant and irrigate wheat and remove the livestock from the property, which it will not do. Ms. Wallace stated the responsibility of the West Greeley Conservation District is to prevent dust from blowing and prevent soil loss, and there is minimal soil loss in this situation. She indicated there is always a minimal amount of soil loss in the State of Colorado, since the wind blows here, and the area is considered highly rotatable in nature. Phil Brewer, Department of Public Health and Environment, stated he visited the site approximately two (2) weeks ago at the request of Stephanie Arries, Assistant County Attorney, and his observations are reflected in the report he submitted. He stated he does not have anything to add to the information which has already been presented. In response to Chair Pro-Tem Conway, Mr. Brewer stated he does not regard this as an emergency situation, and the blowing soil is not sufficient in quantity to be Minutes, June 1, 2011 2011-1411 Page 6 BC0016 injurious to private or public property. In response to Chair Pro-Tern Conway, Mr. Barker stated Mr. Brownlee submitted two (2) vials to the County Attorney's Office and indicated one contains manure and the other contains sand; however, he does not know specifically where the samples were taken. Mr. Brewer stated Mr. Brownlee showed him two (2) vials when he made his site inspection, and perhaps those are the two (2) vials Mr. Brownlee submitted; however, he does not know where Mr. Brownlee collected the samples. No representatives of the complainant were present. Jim Cross, property owner, indicated his son, Carl Cross, is also present, and submitted Exhibits A and B into the record. He indicated he has prepared the materials for his defense; however, it may no longer be necessary to review the information, based on what has already been stated. In response to Chair Pro-Tern Conway, Mr. Cross stated the letter where he indicated he will spread manure on the north section and plant wheat was sent on October 13, 2011, and he completed both items. Further responding to Chair Pro-Tern Conway, Mr. Cross indicated it was dry with extremes winds; therefore, the wheat did not thrive; however, he made the attempt, upon Mr. Brownlee's request. Commissioner Garcia stated he does not find that the soil is blowing in sufficient quantity to be injurious to private property; therefore, he will move to dismiss the complaint. Chair Pro-Tem Conway gave the opportunity for public testimony; however, none was provided. Commissioner Long stated he finds the practices on Mr. Cross' property to be upstanding and in accordance with the County's Right to Farm policies. Commissioner Conway indicated he does not find merit in Mr. Brownlee's complaints, based on the testimony provided by the West Greeley Conservation District and the County staff. Commissioner Garcia moved to dismiss the complaint. Commissioner Long seconded the motion, and he thanked the West Greeley Conservation District. He stated he values the West Greeley Conservation District's determinations regarding whether a problem exists and the solutions it provides. Commissioner Garcia thanked the West Greeley Conservation District for sharing its expertise. Chair Pro-Tern Conway thanked everyone who participated in the hearing. There being no further discussion, the motion carried unanimously. CONSIDER APPOINTMENT TO REGIONAL COMMUNICATIONS ADVISORY BOARD: Commissioner Garcia moved to appoint Kenneth Poncelow to the Regional Communications Advisory Board. Seconded by Commissioner Long, the motion carried unanimously. RESOLUTIONS AND ORDINANCES: The resolutions were presented and signed as listed on the Consent Agenda. No Ordinances were approved. Let the minutes reflect that the above and foregoing actions were attested to and respectfully submitted by the Acting Clerk to the Board. Minutes, June 1, 2011 2011-1411 Page 7 BC0016 There being no further business, this meeting was adjourned at 10:07 a.m. BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO ATTEST: 0, EXCUSED _J Barbara Kirkmeyer, Chair Weld County Clerk to the B V tic' �a an P. Co ay, Pro-Tem P5 Deputy Clerk to the Beard Wil Garcia O DAS • Oex� David. Long 1/ oun y Attorney EXCUSED Douglas Rademacher Minutes, June 1, 2011 2011-1411 Page 8 BC0016 College -Imprimis I IILLSDALE COLLEGE [ i Search hillsdale edu GO GO Home > News & Events > Imprimis , fprimis it's FREE! About Imprimis imprimis Click Imprimis is the free monthly speech digest of Hillsdale College and is dedicated to educating heft CO citizens and promoting civil and religious liberty by covering cultural,economic,political and sign up educational issues of enduring significance. The content of Imprimis is drawn from speeches today delivered to Hillsdale College-hosted events,both on-campus and off-campus. First published i.. . in 1972,Imprimis is one of the most widely circulated opinion publications in the nation with over 1.9 million subscribers. akT I t February 2011 Seth Lipsky Founding Editor New York Sun Email this issue to a Friend PRINTABLE PDF Share this Issue: More The Floating Dollar as a Threat to Property Rights Seth Lipsky is the founding editor of the New York Sun. A graduate of Harvard College, he served in the U.S. Army in Vietnam as a combat correspondent for Pacific Stars and Stripes.A former senior editor and member of the editorial board of The Wall Street Journal, he has also served as editorial page editor of The Wall Street Journal/Europe, managing editor of The Asian Wall Street Journal, and assistant editor of Far Eastern Economic Review.In 2009, he published The Citizen's Constitution:An Annotated Guide. '-ft " The following is adapted from a speech delivered on February 16,2011,at a Hillsdale College National Leadership Seminar in Phoenix,Arizona. r kri• TO BEGIN, consider one of the most important measures of property, the kilogram. It's a measure of mass or, for non-scientific purposes, weight. According to the papers „ , , 1 , • College - Imprimis la:, week, a global scramble is under way to define this most basic unit after it was discovered that the standard kilogram—a cylinder of platinum and iridium that is maintained by the International Bureau of Weights and Measures—has been losing 33 East College St. Hillsdale, F1 mass. 49242 • Tel: +1 You may think that this is impossible. Of all the elements, iridium is the most resistant 517 437-7341. • to corrosion, and the cylinder is kept in a facility at Sevres, France, where it is under Fax: +1 517 437 three glass domes accessible by three separate keys. The cylinder itself is more than 3923 130 years old and is what the New York Times calls the"only remaining international standard in the metric system that is still a man-made object."The new urgency to 2007-09 redefine the kilogram comes from the fact that its changing mass"defeats,"as the Hillsdale College. Times put it, "its only purpose: constancy." All rights reserved. The question I invite you to consider for a moment is what would happen if we just let the kilogram float?This is a question that was posed in an editorial last week in the New York Sun. After all, the editorial said, we let the dollar float. The creation of dollars, and the status of the dollar as legal tender, is a matter of fiat. Its value is adjusted by the mandarins at the Federal Reserve, depending on variables they only sometimes share with the rest of the world. This would have floored the Framers of our Constitution, who granted Congress the power to coin money and regulate its value in the same sentence in which they gave it the power to fix the standard of weights and measures—like, say, the aforementioned kilogram. Now, the record is clear in respect of how America's founders viewed money. Many of them went into the Second United States Congress, where they established the value of the dollar at 371 1/4 grains of pure silver. The law through which they did that, the Coinage Act of 1792, noted that the amount of silver they were regulating for the dollar was the same as in a coin then in widespread use, known as the Spanish milled dollar. The law said a dollar could also be the free-market equivalent in gold. The Founders did not expect the value of the dollar to be changed any more than the persons who locked away that kilogram of platinum and iridium expected the cylinder to start losing mass. In fact, in this same 1792 law, they established the death penalty for debasing the dollar. Today, members of the Federal Reserve Board don't worry about how many grains of silver or gold are behind the dollar. They couldn't care less. And this is what I believe is the most worrisome threat to property rights today. When the value of a dollar plunges at a dizzying rate—at one point in recent months it collapsed to less than '/1,400 of an ounce of gold—Fed Chairman Ben Bernanke goes up to Capitol Hill and declares merely that he is"puzzled." No "new urgency"to redefine the dollar for him. The fact is that we've long since ceased to define the dollar, and it can float not only against other currencies but even against 371 1/4 grains of pure silver. So, the New York Sun asked, why not float the kilogram? After all, when you go into the grocery to buy a pound of hamburger, why should you worry about how much hamburger you get—so long as it's a pound's worth? A pound is supposed to be .45359237 of a kilogram. But if Congress can permit Mr. Bernanke to use his judgment in deciding what a dollar is worth, why shouldn't he—or some other Ph.D. from M.I.T.—be able to decide from day to day what a kilogram is worth? No doubt some will cavil that the fact that the dollar floats makes it all the more reason for the kilogram to be constant. But what's so special about the kilogram? If the fiat dollar floats, one has no idea what it will be worth when it comes time to spend it. If the kilogram also floats, it will simply be twice as hard to figure out what something we're buying will be worth. So what if, when we unwrap our hamburger, the missus has to throw a little more sawdust in the meatloaf? Or let us consider a compromise. Let's go to a fiat kilogram—that is, permit the kilogram to float—but apply the new urgency to fixing the dollar at a specified number of grains of gold. To those who say it would be ridiculous to fix the dollar but let the butcher hand you whatever amount of hamburger he wants when you ask for a kilogram, I say, what's the difference as to whether it's the measure of money or of weight that floats? • College - Imprimis For that matter, one could go all the way and fix the value of both the kilogram and the dollar but float the value of time. You say you want to be paid $100 an hour. That's fine by your boss. But he—or Chairman Bernanke—gets to decide how many minutes in the hour. Or how long the minute is. You know you'll get a kilogram of meat for the price a kilogram of meat costs. But you won't know how long you have to work to earn the money. There was obviously a satirical element to that Sun editorial, But it's not satirical to say that we are in a dangerous situation in our country in respect of the dollar, and that property rights are very much bound up in the question of money. After all, consider that kilogram. It is a cylinder. And it's a cylinder the size of, say, a golf ball. The amount of mass that it is believed to have lost is measured in a few atoms, and yet the institution where they maintain standards is in a complete tizzy about it. The implications are said to be enormous. The dollar, by contrast, has collapsed from 1/35 of an ounce of gold to less than 1/1,300 of an ounce of gold. If the kilogram had collapsed on that order of magnitude, there would be left only a small shard of that handsome grayish cylinder under the three glass domes at Sevres, France. I understand that this is not where the property rights discussion is usually focused. It usually centers around the takings clause of the Constitution—the clause at the center of the landmark case that erupted when condemnation proceedings were launched against the homes in New London, Connecticut, of a woman named Susette Kelo and her neighbors. Under the Fifth Amendment, the government is prohibited from taking private property for public use without just compensation. That is a bedrock principle of American constitutionalism. What was special about Susette Kelo is that her property was taken for private use. It was coveted by a private, non-profit development corporation for private, for-profit use near a big pharmaceutical development that the town reckoned would benefit the public. Mrs. Kelo and her neighbors went all the way to the Supreme Court to try to keep their homes. She lost the case, Kelo v. New London, albeit by a five to four vote. On the one hand, it was a terrible defeat for the principle of property rights. On the other hand, the decision was so alarming that states have begun changing their own laws to strengthen protections against the kind of raid on private property that Mrs. Kelo suffered. At least 43 states have already passed such laws. Rarely has the loser in a Supreme Court case established so great a legacy as Mrs. Kelo, whose case is one of the most important warnings we have had in my generation of the vigilance that is going to be required in respect of the right to property enshrined in the Fifth Amendment. Which brings me to the question of how the law can be used to illuminate the problem of the floating dollar. What I consider the most astonishing legal question in the country came into the news in 2008, when Judith Kaye, the chief judge of the highest court in the state of New York, the Court of Appeals, filed a lawsuit in an inferior court, asking it to order the state legislature and the governor to give her a raise. My first reaction, and that of my colleagues at the Sun, was to consider this something of a joke. Yet the more we began to look at the case, the more it threw into sharp relief the issue of the right to the property that comes to us in the form of a salary or is held by us in the form of savings. The judges on New York's Court of Appeals, after all, hadn't had a raise in more than a decade, and they were having an ever harder time making their salaries cover rising costs. In that they are just like the rest of us. But it turns out that under the Constitution, judges are not quite like the rest of us— and in a way that lies at the heart of the American Revolution. Indeed, in the Declaration of Independence, one of the reasons our Founders listed for breaking with England was that King George III had "made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries." So they wrote into the Constitution not only that judges would have life tenure (with good behavior), but also that the pay of a judge would not be diminished during his term in •„ '-'- ' �--._r-----__... ,..._ '2/11/7M Iiillsdafe College - Imprimis office. This principle that one can never lower the pay of a judge is also in many state constitutions. So if in, say, the year 2000 a judge was paid in dollars that were worth 1/265 of an ounce of gold, and if today that same judge is being paid with dollars worth less than 1/1,300 of an ounce of gold, has the judge's pay been diminished? The more I've thought about it, the more I have been nagged by the thought that judges' pay could be the device with which to attack the legal tender law I have come to regard as the greatest threat to property in America. This is the law establishing that paper money in America must be accepted in payment of debts, public and private. The Founders themselves hated paper money. Washington, whose picture is on the one dollar bill, warned that paper money would inevitably "ruin commerce, oppress the honest, and open the door to every species of fraud and injustice"; Jefferson, whose picture is on the two dollar bill, called its abuses inevitable; as did Madison, whose picture is on the $5,000 bill. Paper money, he said, was "unconstitutional, for it affects the rights of property as much as taking away equal value in land." I'm not so sure that the existence of paper money is the problem. The problem is the requirement that a one dollar paper note be accepted in lieu of 371 '/4 grains of silver. Certainly when the greenback was introduced—as it was by President Lincoln—it was for a cause, the Union, that was worth enormous risks. The Treasury Secretary who helped him put through the greenback as a war measure, Salmon Chase, became, in 1864, the sixth Chief Justice of the United States; and when the concept of legal tender finally came up for consideration, Chase ruled against the greenback. Lincoln, however, eventually got two new justices on the court, and legal tender was established in a series of rulings—one involving the purchase of some sheep, the other of some bales of cotton, and another some land—known as the Legal Tender Cases. A few months ago, I called Bernard Nussbaum, who was representing Judge Kaye, and asked him why she didn't challenge legal tender head on. He told me he feared the Legal Tender Cases couldn't be overturned. It was too heavy a lift. So instead he fought the case on separation of powers grounds. It seems that the New York legislature had said it would not give the judges of New York a raise until the legislators got a raise. The judges sprang on this as a transgression of separation of powers—and, no surprise, when they heard their own case, they ruled against the legislature. A few weeks ago, the legislature decided to delegate to an independent commission the job of deciding judges' pay. By my lights, this delegation to an unelected body, even if the legislature could overrule it, was an unsatisfactory outcome. But it turns out that the judges of New York are not the only jurists who are furious about the diminishment of their pay. A group of federal judges is also in court, fighting over their salaries. In the case of the federal judges, Congress had some time ago enacted a law that gave them an automatic pay increase designed to keep up with the Consumer Price Index. But then, as deficits got out of control and Congress's own salary lagged, Congress suspended the automatic pay increase. At that point, a coalition of federal judges went into court. Their aim is limited: to force Congress to reinstate the automatic pay adjustment. To understand the scale of what one is talking about, consider the pay of but one of the plaintiffs, Judge Silberman. I don't know his exact salary. But at the time he was assigned to the District of Columbia Circuit of the United States Court of Appeals, the salary of a federal appeals judge—$83,200—was worth 258 ounces of gold. Since then, the value of the pay of a judge of one of the Appeals circuits—$184,500—has been diminished to 139 ounces of gold. At this very hour, the judges' petition in their pay case is before the United States Supreme Court. And while I believe the justices have been wronged by Congress, I hope they lose on the question of whether a suspension in the automatic pay adjustment is unconstitutional. That should get them angry enough to come back and look legal tender in the face. They could force Congress to pay them in the gold or httn://www.hillsdale echi/newt/imnrimic ncn Hillsdale College - Imprimis silver equivalent of a federal judge's salary at the time they were appointed to the bench. It would move judges closer to the kinds of salaries the lawyers before them are receiving. And people would start to ask: If judges deserve honest money, why shouldn't the rest of us? To those who suggest that such a scenario is far-fetched, one can say, no more far- fetched than the notion that the post-Civil War monetary system could be erected on Supreme Court decisions in a pair of disputes over payment for a flock of sheep and some bales of cotton. Or that centuries of law on abortion could be overturned in a fell swoop by a Supreme Court ruling in the case of a woman who later changed her mind. Could the court cast aside precedent to decide such a sweeping issue as legal tender? It certainly didn't hesitate—nor should it have—in demolishing the notion that racially separate schools could be equal. With everyone from the United Nations to Communist China today calling for the abandonment of the dollar as a reserve currency, is it so hard to imagine that the Supreme Court might revisit the Legal Tender Cases? It may be that the judges will lose their pay case,just as Susette Kelo lost her house, or that they will win a partial victory and the Supreme Court will shy away from confronting legal tender. But we know from Mrs. Kelo's case that this needn't be the end of things. People began to see the logic and think about property rights, and now at least 43 states have passed laws to make it harder for state and local jurisdictions to use the power of eminent domain to seize private land for someone else's private use. Could such a thing happen with money? Well, there is a part of the Constitution called Article I, Section 10. It is the section that lists the things that states can never do. And one of these prohibited activities is making legal tender out of something other than gold or silver coin. So what is happening now is that a growing number of states, watching the sickening plunge in the value of federal money, are starting to explore how they can set up monetary systems based on gold or silver coins. The most recent effort was launched in Virginia, where there is a bill before the General Assembly to set up a joint committee to study the question. There have been early stirrings—just stirrings—in the legislatures of several other states. Could the entry of the states into the monetary role be a reaction to a failure at the federal level, the way the states reacted to the failure of the Supreme Court to enforce Susette Kelo's Fifth Amendment rights? It would be inaccurate to make too much of these efforts. But it would be shortsighted to make too little of them. Strange things can happen. It is even possible that one can take a cylinder of platinum and iridium, lock it away in a room under three glass domes, secure it with three separate keys, and come back in a few years to discover that part of it has disappeared. And the New York Times will write an editorial about the value of constancy. Copyright © 2011 Hillsdale College. The opinions expressed in Imprimis are not necessarily the views of Hillsdale College. Permission to reprint in whole or in part is hereby granted, provided the following credit line is used: "Reprinted by permission from Imprimis, a publication of Hillsdale College." SUBSCRIPTION FREE UPON REQUEST. ISSN 0277-8432. Imprimis trademark registered in U.S. Patent and Trade Office #1563325. fl Ii LSD11 E Contribute err to Hillsdale Hello